Proper sanction for refusing to reimburse unearned fee?

The Legal Profession blog is reporting today on a case with an interesting set of facts:  An attorney was retained and paid a $10,000 non-refundable retainer for a criminal case. A few days later, the client committed suicide. At the time, the attorney had done no more than five hours of work on the case. The client's widow sought a refund. The attorney refused, "asserting that he had earned the entire amount." The attorney refunded the fee during the ensuing disciplinary proceeding.

Based on these facts, the Indiana Supreme Court ordered a suspension of 30 days for charging an excessive fee and failure to return an unearned fee. The court found that restitution after a grievance is filed "does not qualify as a mitigating circumstance."  The court's order is available here.

I have no problem with the court's decision.  The conduct was unethical and the refund was provided too late.  My question is whether the sanction was adequate.  I have often posted comments about this.  What makes the conduct worth a one month suspension, as opposed to a two month suspension, for example?

I think a one month suspension is too lenient in this case, but I am not sure what would be appropriate.  What do you think?  I guess the way to find an answer is to research the law of the state to see if there are other similar cases.

I thought prosecutors have an obligation to behave ethically... silly me!

A court-appointed investigator has found that the high-profile prosecution of the late Senator Ted Stevens was “permeated” by the prosecutors’ “serious, widespread and at times intentional” illegal concealment of evidence that would have helped Mr. Stevens defend himself at his 2008 trial. However, the investigator recommended against imposing a finding of contempt on the prosecutors involved because the judge who presided over the trial did not issue an order specifically instructing prosecutors to obey the law, and act according to their ethical duties, both of which required them to turn over any exculpatory evidence.

I am sorry, but this is so absurd it is painful.  Granted, there is a difference between contempt and disciplinary action, but this "reasoning" is one of the dumbest things I have heard all year.  To say that clearly unethical conduct is not worthy of punishment because the court did not specifically tell the lawyers they needed to be ethical makes a mockery of the whole notion of professional responsibility! 

And people wonder why there is so much prosecutorial misconduct.  Here is the answer: because there is no accountability.  Judges need to understand that to minimize prosecutorial misconduct they need to start imposing liability (whether civil, criminal or disciplinary) for unethical conduct.

For more on this story see The New York Times, Jonathan Turley's blog, the Wall Street Journal's law blog and the Blog of the Legal Times.

Legal Zoom Sues North Carolina Bar - UPDATED

Last August I reported that Legal Zoom.com settled a class action filed in Missouri claiming that it was illegally practicing law in the state of Missouri.  Go here for more details.

Legal Zoom is now back in the news. The Wall Street Journal law blog is reporting that Legal Zoom has filed a lawsuit in North Carolina claiming the State Bar has accused Legal Zoom improperly of engaging in the unauthorized practice of law. The suit asks the court to declare that Legal Zoom is authorized to sell its self-help legal service on the Internet.  Go here for more information.

UPDATE: 11/28/11:  The Lincoln Tribune recently published a story on this case here.
Thanks to the Legal Ethics Forum for this link.

How not to practice law update

Here are the links to the "how not to practice law list" so far.  As you can see, these are examples of incredible but true stories of conduct that is so basic you'd think anyone would know that what they are doing is improper.  Nothing complicated here. In many of the cases, you can say the conduct is simply just plain stupid...  The list would be funny, if it weren't for the fact that it is a serious problem that there are so many lawyers out there getting in trouble for these kinds of things.... Each item is a link to its own post/story.

have sex with client, then charge her for your services

help your boyfriend escape from prison, wait a couple of hours, then post a photo of the two of you on Facebook

on appeal, prepare a lousy brief that does not support your arguments

beat up your client with a baseball bat

steal money from clients, then "in your defense" argue you needed the money

bring your recreational drugs to court, then drop them in front of police officer

post photos of your client's undies on Facebook and make fun of your client and his family in the process

do everything wrong when leaving your firm

video: how not to conduct a hearing (follow up on that story, here)

if you are a judge, preside over the bond hearing of the person accused of a crime against you

if you are a judge, let your clerks decide your cases while you are on vacation

misrepresent your assets in a bankruptcy application (even though you are wearing them in public)  (or hide your assets in a bankruptcy case)

don't pay taxes (particularly if you are a former IRS attorney and a tax lawyer)

don't take depositions seriously

if you are a judge, try to establish inappropriate personal relationship with attorney who appears before you

stop paying child support

use your client's money to pay gambling debts

pull a gun on a process server when he is trying to hand you some papers

lie during the disciplinary process to cover up your mistakes (more recently, here)

try to cheat on the bar exam

host a website with nudity and profanity and then go ahead and post statements that suggest you are a drug user

claim you forgot your client was your client in order to avoid correcting your client's perjured testimony during discovery

allow your client to be convicted even though he was in prison at the time of the crime

double bill the court

prepare a will for the client in which the client names you or your wife as the beneficiary

write incomprehensible complaints and briefs

slap the witness in the face during a deposition

bring drugs with you when you visit clients in prison

use client's money to shop at Walmart and then claim misconduct is due to "poor bookkeeping"

represent buyer and seller in a transaction, then represent one of them against the other after transaction is done

show the jury the evidence the judge had excluded

have your spouse lend money to client

don't pay attention to the details

inflate your bills

start to practice law before you are admitted to the bar

abuse your power as a prosecutor by offering leniency in exchange for sex with defendants or their mothers

don't pay your student loans

offer to help law students cheat

claim that everything is confidential

charge a fee for doing nothing

try to help your client by breaking the law

advertise you have "associates" when, in fact, you don't

tell the jury you think your client is guilty

pretend to be a doctor  (more recently here)

try to influence the judge

show up drunk, (same problem, more recently here)

have sex with clients while visiting them in prison (a similar, more recent case here)

sell the defendant's property

be a pimp

charge $3,500 an hour AND be rude to the judge

plagiarize

break the law and obstruct justice

tell your divorce client's wife you want to go out with her

have sex with client's wife

continue to practice during your suspension (same problem, more recently here)

make sure you tell the jury the information the judge had excluded

pay your employees "under the table"

ask client to pay fees with drugs (same, more recent case here)

insult the judge (preferably in writing)

write a bad brief

don't ever read anything before publishing it in the press (if you are lucky it will have a racist statement in it)

if you make a mistake, lie to cover it up

pay your bar dues with a check from your client's account

convince clients to give you title of their house so they avoid foreclosure, then get them evicted

let the client dictate (bad) strategy

ask client to pay fees with sex

park in the handicapped parking spot

lie

get married when you are already married (same problem, more recently here and here)

show up to court drunk

have affair with married woman, then agree to represent her husband in divorce

when interviewing an applicant for a secretary position tell her that having sex with you is part of the job

try to recover expenses from your client after you agreed not to do it

provide the wrong citation to key cases so the judge goes nuts trying to find them

try to blackmail your opponents to get what you want

lie to the judge

take more work than you can handle

lie to the disciplinary committee

forge the judge's signature

ask for stolen property as payment for your services

rob a bank

be rude to the judge's clerk

don't proofread anything before you file it in court

Solicitation in the Penn State sex scandal

Eric Turkewitz comments (and he "names names") on attempts to find and solicit sex abuse victims here.

Be careful what you wish for

Here is an interesting recent case out of the Illinois Appellate Court.  In this case, a criminal defendant appealed his conviction - which was the result of a negotiated plea - arguing that he agreed to the deal based on his lawyer's bad legal advice.  According to the agreement, he received a sentence of 27 years in prison.  Only problem is that, because of the circumstances of the case, the mandatory minimum sentence should have been 25 years more.  So the court of appeals grants his request to set aside the conviction and remands the case to allow the defendant to withdraw the plea "and proceed to trial if he so chooses" only now he is facing, at a minimum, about twice the sentence.  So he got what he wanted but now he is much worse off.

So what happened here?  I don't know why or how the negotiated plea was obtained.  Maybe the prosecutor and the judge were trying to be nice and agreed to a sentence that was less than required (is that improper?) or maybe neither one of them knew the law.  And what about defense counsel, is it improper to negotiate for a deal that the lawyer knows is contrary to the law?  Or, again, was it a case where the lawyer simply did not know the law?  And then there's defendant's counsel on appeal.  Why would he recommend to appeal a sentence when the result could ONLY be worse for the client?  Did he inform the client of this and let the client decide or did the lawyer not realize it?  The case is called People v McRae and it is available here.

Interestingly, this is not the first time I've heard of something like this.  Two years ago, I wrote about a case called People v Beltran Moreno (here), in which the same thing happened.

So now I wonder how frequently lawyers, prosecutors and judges are agreeing to and approving plea agreements that do not meet the minimum standards of the law.

The rest of the decision in McRae is also interesting.  The defendant argued that his attorney gave him bad legal advice about the possible admissibility of a letter he wrote to the lawyer which was taken from his cell and read by the authorities because it was not marked "legal mail."  In the letter, the defendant essentially confessed to committing the crime.  Once the letter was read by the authorities, the defendant's lawyer told him it would be admissible against him and that he should take the plea deal.  On appeal, the defendant argues that that advice was wrong because the letter would have been inadmissible as protected by the attorney-client privilege. The Appellate Court discusses the issue but does not resolve it.  Essentially, it concludes that the answer to the issue depends on "whether the defendant treated the letter in such a careless manner as to negate his intent to keep it confidential" and remands the case so the lower court can determine if that was the case.

Prosecutor's book contract results in reversal of conviction and more

Model Rule 1.8(d) states that "prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation."  Most jurisdictions probably have a similar rule, the purpose of which, obviously, is to make sure an attorney is not distracted by his or her personal interest in making money off the future book or movie.  It is a pretty simple rule and I don't remember having seen too many cases about it.

In one of those rare cases, the Legal Profession blog is reporting today that the Indiana Court of Appeals has reversed a murder conviction in a case where the prosecutor had entered into a (now cancelled) literary contract for a book.  The case is Camm v Indiana and it is available here.  For more on the case, go to the Legal Profession blog here.

LSC's funding to be cut, probably by 14%

The Chicago Daily Law Bulletin is reporting that the Legal Services Corp. (LSC), which awards grants to legal aid providers throughout the nation, could see its funding slashed by nearly 14 percent in fiscal year 2012.  There are three legal aid providers in Illinois that rely heavily on federal funding to provide legal assistance to those in need: Land of Lincoln Legal Assistance Foundation, Legal Assistance Foundation of Metropolitan Chicago and Prairie State Legal Services Inc.  The cuts in funding will likely result in cuts in staff and fewer services at a time when there are more poor people and more need for those services.

Please consider giving generously to agencies providing legal aid when choosing charities to contribute to this coming holiday season (or at any other time in the future).

UPDATE:  Public Citizen has more information here, including a link to the 2012 budget deal.

Supreme Court to hear case on possible attorney immunity

The Supreme Court has announced its schedule for oral arguments during the month of January and it includes a case on the law of lawyering and torts. The case is called Filarsky v. Delia is about there private lawyers should have the benefit of immunity for the consequences of their conduct while working temporarily for the government. I have mentioned the case before here. For more information and links to all the relevant documents, including the lower court's opinion and the parties' briefs go here.

Yet another case of possible prosecutorial misconduct for not disclosing exculpatory evidence; this one from Texas

I have been following the case before the Supreme Court on prosecutorial misconduct for failing to disclose exculpatory evidence (see here, here and here), and I have commented on the relationship between that case and last year's case Connick v Thompson in which the exonerated man sued the DAs office seeking compensation. (for more on that one type Connick in the "search this blog" box on the right under my photo which will take you a a lot of links on the case.)

Today, in yet another case of a defendant getting exonerated after spending a long time in prison (two decades in this case), the Legal Ethics Forum is reporting that the prosecution is going to have to answer some very hard questions about the prosecutor's fulfillment of his duty to disclose.  For more go here.

Conflict of interest costs law firm $250,000

Last month, the Illinois Appellate Court released an interesting case (from earlier this year) that addresses the consequences of agreeing to represent a client knowing that doing so would constitute a conflict of interest.  As the title of this post suggests, that consequence was that the firm was not allowed to recover a $250,000 fee.  Although there are some inconsistencies within the court’s reasoning, I think it reaches a correct result.  The case is called In re Marriage of Newton and it is available here.

The story behind the case started when a husband consulted a lawyer about hiring the lawyer to represent him in his divorce.  Having decided not to represent the husband, the attorney decided to represent his wife instead, who consulted the lawyer some time later.  After the husband filed a motion to disqualify the wife’s attorney (and his firm), the court held some hearings, the results of which were appealed which led to more hearings and eventually, after about two years of litigation on the question, the lower court not only disqualified the firm but also ordered that it did not have a right to recover any fees.  When the firm protested in court, the judge held the lawyers in contempt.

On appeal from the contempt order, the court believed that to discuss the validity of the contempt order it was also necessary to discuss the validity of the disqualification order and the order barring the recovery of fees.

Before we go any further, it should be noted that the fee issue was based on a specific statute that allows a wife to make her husband pay for her lawyer.  This is an important fact because the firm in question was requesting that the party it supposedly betrayed pay for its fees.  The court did not like that idea.

The court began its analysis by pointing out correctly that, an attorney-client relationship can be created based on the client’s belief that it has been created and does not require a formal handshake, or signing of a contract.  For this reason, given the evidence adopted as true by the lower court, the court concluded that a professional relationship was established with the husband during the initial interview.

This is okay, but it omits the fact that the attorney clearly declined to accept the representation at the end of the interview.  The case is better viewed as an example of the case of a prospective client under Rule 1.18, but since that rule did not exist at the time of the facts of the case, the court analyzes the issue under Rule 1.9 which is about the duty owed to former clients.

If the husband is a former client, then Rule 1.9 prohibits the lawyer (and 1.10 extends that to all other lawyers in his law firm) from taking on the representation of the wife in the divorce.  Knowing this, the firm nevertheless agreed to represent her.  (Note that during the evidentiary hearings the wife testified that the lawyer admitted to her he knew taking her case would create a conflict; but the lawyer denied saying this.  The lawyer also denied having taken any notes during his meeting with the husband, but the husband asserted he did.  The court did not give much credibility to the lawyer.

Thus, assuming as true that the attorney agreed to represent a client with full knowledge that doing so would create a conflict of interest, the court found that the agreement for services was null and void from its inception and thus did not give the lawyers the right to enforce it.  Citing the principle that an attorney may not receive fees from the party he has wronged, the court held the lawyers were not entitled to the fees they claimed to have earned during the two years they represented the wife.

The firm argued that it should have been compensated for the work done for the client up to the time it was disqualified.  The court disagreed, however, finding that the firm had not been litigating in good faith whether its representation of the wife constituted a conflict, because it had already admitted to her that it was.  One thing is to say that the firm did not think there was a conflict and was willing to fight for two years to argue the point, and quite another to say that the firm knew there was a conflict but wanted to fight for two years to be allowed to keep the case anyway.  The court saw the case more like the latter than the former.

For me the key to this case, which the court does not emphasize enough, is the fact that the lawyer/firm actually knew going in he/it was engaging in a conflict of interest.  I have no problem finding that under those circumstances the firm should pay the price.

I do worry, however, that read more generally, the case can penalize a firm that is caught in conflict (not of its own fault).  Take a case where two firms merge in the middle of the litigation creating a conflict in a case, or a case, like the famous Cunningham case used in many casebooks, where an offer to settle the case creates a conflict for the opposing firm.  In such a case, I think it would be fair to allow the conflicted firm to withdraw and allow it to recover fees for the work already performed for the client before it realized it had a conflict including for the period of time during which the firm acted with a conflict but had not realized it yet.

In the end these two possible approaches open the question whether the notion of conflicts of interest should be seen as a sort of “strict liability” case where the fault of the firm does not matter.  According to this approach, if there the firm acted with a conflict, the firm acted wrongly and should not recover its fees. According to the other view, if the firm acted with a conflict, it should be allowed to recover the fees for the services rendered until it is officially disqualified as long as the firm acted without knowledge or fault.

Of course, the question gets more complicated if it can be argued that the firm acted with the conflict because of its own negligence.  I would say that such a case should be resolved just as if the firm acted intentionally (as in the case I am discussing here), because firms have a duty to use reasonable care to avoid conflicts.

One last point: I mentioned at the top that there are some inconsistencies in the analysis of the court and here it is.  Having decided that the attorney created a professional relationship with the husband during an initial interview - even though the interview resulted in the lawyer rejecting the case - the court goes on to cite some older cases that hold that for there to be an attorney-client relationship there has to be a contract and a clear meeting of the minds.  The expressions cited from these cases, clearly contradict the principle upon which the court based its decision.

The result of the case, however, it correct, it seems to me because the key is not whether a relationship was formed during that interview, but the fact that the attorney stated he knew taking on the new case would be a conflict and acted in a way that showed he did not care.

Fortunately, looking forward any future cases with similar facts would be decided using the new rule on prospective clients (Rule 1.18) which should make the analysis a bit more straightforward.

Illinois Appellate Court reverses conviction because of ineffective assistance of counsel based on conflict of interest

Last September, in a short, but well written opinion, the Illinois Appellate Court addressed the issue of whether a conviction should be reversed due to a conflict of interest.  This was the second case in which the court reversed a conviction for ineffective assistance of counsel that month.  The case is called Illinois v Dopson  and it is available here.  My comment on the other case decided that month is here.

In Illinois v Dopson, the attorney for the accused was representing two criminal defendants concurrently in separate cases.  The attorney did not know that one of these defendants was a confidential informant who provided all the information used to arrest the other client.  When the state disclosed to the attorney that one of his clients would be used as a witness against the other client, the attorney ceased to represent the client who was going to be a witness for the state.  He continued to represent the other client, though, and that client was convicted.

On appeal, the client claimed his attorney has provided ineffective assistance of counsel because he continued to represent him while he had a "per se" conflict of interest.  The court agreed.

The court started by pointing out that even though Strickland v Washington usually requires the defendant to show serious attorney error and prejudice, a showing of a per se conflict, by definition, satisfies both prongs of the test.  Operating under a per se conflict is such a serious error there is no need to show prejudice.  Reversal is automatic.

Since Illinois has decided already that prior or contemporary representation of a State's witness constitutes a per se conflict, the Court had no problem finding the case required reversal.

The State claimed there was no conflict of interest because the attorney was not contemporaneously representing the two clients at the time of the defendant’s trial. However, all that means is that the conflict went from being a concurrent conflict to a successive one. Either way, as the court correctly states, “the State’s attempt to narrow the scope of the per se conflict-of-interest rule belies its underlying purpose” which is to make sure an attorney does not find himself in a position where the attorney can’t represent the interests of one client because of his duties to another. As the court states, this “presupposes that defense counsel’s vigorous cross-examination of the State’s witness should be unhindered” by the need to protect a former client’s confidences. At the time of the trial, the attorney was prevented from attempting to elicit information obtained during that prior representation. Whether such information existed, or would have been useful to the defense, is irrelevant.

Finally, although it had stated it was not necessary to establish prejudice, the court points out that the attorney’s cross examination of his former client “was mild, at best.” The attorney did not attack her credibility or point out her possible bias.

Thus, any way you look at it, the court found the circumstances showed a clear conflict of interest which required reversal of the conviction.

Illinois Appellate Court reverses conviction (based on a negotiated plea) because of ineffective assistance of counsel

Convicted defendants often argue ineffective assistance of counsel on appeal, but the argument is not successful most of the time.  Last September, however, the Illinois Appellate Court decide two cases in favor of defendants claiming ineffective assistance of counsel.  I will comment briefly on both of them in separate posts.  Here is the first one.

In this first case, the court set aside a negotiated plea, after finding that the defendant's attorney had rendered ineffective assistance.  In that case, the defendant argued he had agreed to the plea offer based on trial counsel's representation that there were no witnesses available to testify on defendant's behalf, when, in fact, there was one such witness.

The court explains that although to present a witness in a case is a discretionary decision for which usually does not support a claim of ineffective assistance of counsel, in this case the attorney's conduct was not deciding not to use a witness but failing to investigate if there were any witnesses.  The court added that whether defense counsel was ineffective for failure to investigate is generally determined by the value of the evidence that had been available but the attorney failed to find.

Using that standard, the court found that the defendant was able to make a case of ineffective assistance of counsel under the Strickland v. Washington standard (attorney error and prejudice).

The case is called People v Clark and it is available here.

Greetings from Switzerland

I am coming to you "live" today from Lucerne, Switzerland!  I came here to teach a class on International Torts at the University of Lucerne's Law School, with which my law school has an exchange program.  If you are interested in what I will be covering in that course, go here.  The book I put together for the course is about 150 pages long right now, but it will be shorter next summer when the Supreme Court decides some of the cases I have in the book.  For more about that go here, here and here.

Oral argument audio in Smith v Cain is now available

The oral argument in Smith v Cain is available here.

Happy Birthday to the Blog!

Today is this blog's third anniversary!  I started it on November 11, 2008, just a few days after I had started my Torts blog.  Since then I have posted more than 800 posts!  I thank you for your support and hope you will continue to follow the blog in the years to come.

Oral argument recap in Smith v. Cain: it did not go well for the prosecution!

A few days ago I posted a note about a new case before the Supreme Court on prosecutorial misconduct in New Orleans called Smith v. Cain. The oral argument before the Supreme Court was today and apparently it did not go well for the office of the prosecutor.  As reported by Lyle Denniston of the SCOTUS blog, the justices pretty much actually suggested to the attorney representing the DA's office that she should just give up.  Here is an excerpt of Denniston's argument recap:

There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case. That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles. It is a heavy burden for a lawyer from that oft-criticized office to mount any defense of its prosecutions, but Andrieu repeatedly found ways to botch virtually every point as she argued Smith v. Cain . . .

. . . .   The aggressive exchanges [between her and the justices] were getting to Andrieu, and the phrase “I’m sorry” began appearing regularly in her answers, as she suggested, now and then, that she had misunderstood the questions. As her argument was winding down, Justice Elena Kagan leaned forward and asked: “Ms. Andrieu, did your office ever consider just confessing error in this case?” Stunned, the prosecutor said: “I’m sorry?” Kagan repeated: “Did your office ever consider just confessing error in this case? You’ve had a bunch of time to think about it. Do you know? We took cert a while ago. I’m just wondering whether you’ve ever considered confessing error.” The prosecutor answered: “Your Honor, we believe that we have an argument . . . 

It only got worse for Andrieu. Justice Antonin Scalia suggested that the prosecutor “stop fighting as to whether it should be turned over. Of course it should have been turned over…Why don’t you give that up?”   . . .

At that point, it seemed that nothing more could embarrass the New Orleans prosecutor. But Justice Sotomayor then brought up the “serious accusations against the practices of your office, not yours in particular but prior ones. It is disconcerting to me that when I asked you the question directly should this material have been turned over, you gave an absolute no.” Andrieu weakly suggested that she had misunderstood the question.

But Sotomayor pressed on: “It is somewhat disconcerting that your office is still answering equivocally on a basic obligation as one that requires you to have turned these materials over, whether it caused harm or not.” Andrieu still did not seem to understand.  . . .

I guess this should not be surprising, given the nature of the allegations and the arguments involved, but it is upsetting that it comes a year too late for John Thompson, who spent years in prison because of prosecutorial misconduct in the same office.  The Supreme Court reversed a verdict in his favor last year.  (Go here and scroll down for a lot of information on that case.)

You can read the full article on the oral argument here.

You can read the transcript of the oral argument here.

UPDATE 11/12/11: The audio of the oral argument in Smith v Cain is now available.  To listen to is now click here here.

UPDATE 1/12/12:  The Supreme Court announced the decision in Smith v Cain today.  Go here for more information.

Supreme Court to hear another case on prosecutorial misconduct from New Orleans

As you probably remember, last year the Supreme Court decided Connick v. Thompson, which has been described as "one of the most bitterly divided opinions of the Court in a criminal case in recent years," absolving the New Orleans office under DA Harry Connick, Sr. of complaints that it had failed to train prosecutors about their duty to disclose exculpatory evidence.  (If you type "Thompson" or "Connick" on the "search this blog box" on the right side panel (under my name), you will find a number of entries with a lot of information about that case.)

At 11 a.m. this coming Tuesday, the Supreme Court will consider new claims of misconduct by prosecutors in the New Orleans district attorney’s office when it hears oral arguments in a case called Smith v. Cain.

The case involves the same complaint:  that the prosecution team for Orleans Parish follows a continuing policy of refusing to hand over exculpatory evidence to defense lawyers.

Go here for more on the background of the case.

Go here for access to all the relevant documents about the case, including the lower court opinion and the briefs of the parties.

Audio of Supreme Court oral arguments is now available

A few days ago, I wrote about two cases before the Supreme Court on ineffective assistance of counsel.  See here.   Both cases ask the Court to decide whether a conviction should be reversed due to an attorney's mistaken/incompetent advice during plea negotiations. The attorney's conduct in Frye was also a violation of the attorney's duty under rules of professional conduct.  You can now listen to the oral arguments here and here.

Article on ethical issues related to the representation of older clients and clients with diminished capacity

The most recent issue of the Illinois Bar Journal has an article on the ethical issues related to the representation of older clients and clients with diminished capacity.  You can read the full article here.

Article on prosecutorial misconduct

The Yale Law Journal online has published an essay on prosecutorial misconduct called The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct. You can read it here or here.

Thanks to the Legal Ethics Forum for the link.

Is blogging a form of advertising?

For a number of years, criminal defense attorney Horace Hunter has used a blog as part of his firm's website to write short articles about what he considers to be important issues related to his cases.  Recently, the Ethics Counsel of the state of Virginia contacted him to tell him his blog was considered a form of advertisement and was not in compliance with the state rules.  Eventually, the bar has brought a misconduct charge against Hunter, who argues the blog is news and commentary, and that the bar’s attempt to discipline him, or to force him to add a disclaimer stating the blog is an ad, is a violation of his First Amendment rights.  You can take a look at the blog itself here.

This is a very interesting question and, given the rising number of firms that host blogs, it can have significant implications.

The case has generated a good deal of attention.

Here is an article in the Washington Post discussing the issue.

You can listen to podcasts discussing the case here and here.  The second one of these is an interview with attorney Hunter himself.

Here some very insightful comments from other bloggers:  here and here.

To paraphrase some of these comments, the problem with the case is that the issue should be about the content of the publication not about the type of publication.  The question should not be whether a blog is a form of advertising, but whether what is said in the blog is advertising.  As Carolyn Elefant of MyShingle.com states:

. . . .if the Virginia Bar finds that Hunter’s news feed qua blog is an advertisement and therefore requires disclaimers, mark my words, that decision will be construed broadly to encompass even legitimate blogs that discusses substantive legal issues. A blog that analyzes legal issues or summarizes recent cases is no more of an advertisement than a law review article or op-ed piece, neither of which must be tattooed with disclaimers.  

I tend to agree with this statement, and it is easy to apply the analysis if the blog only publishes the same type of articles all the time.  But a blog is not just one article.  Each entry is an article in and of itself.  What if some are like ads and some are like law review articles?

Maybe a good compromise would be to require a general disclaimer in the firm's website (which is probably required already anyway), but not in each individual blog entry. 

Discussion on the lawyering cases before the Supreme Court

Yesterday, the Supreme Court Blog hosted a discussion of the two cases on ineffective assistance of counsel the Court heard a few days ago.  You can read all the comments here.

Supreme Court hears cases on ineffective assistance of counsel; transcripts are available

Yesterday, the US Supreme Court heard oral arguments in two cases on the law of lawyering: Lafler v. Cooper and Missouri v. Frye.  Both cases ask the Court to decide whether a conviction should be reversed due to an attorney's mistaken/incompetent advice during plea negotiations. The attorney's conduct in Frye was also a violation of the attorney's duty under rules of professional conduct.  Here is a link to an article providing all the background on the cases.

In Lafler, the attorney mistakenly told the defendant that the state could not establish a necessary element of its case.  Based on that advice, the defendant rejected a guilty plea, was convicted at trial, and was eventually sentenced to a much longer prison term.

In Frye, the defendant’s counsel simply failed to inform him that a plea bargain had been offered at all, allegedly leading him to enter a guilty plea on terms far less favorable than he would have received had he agreed to the state’s offer.

The full transcript of the oral argument in Lafler can be found here.  All relevant documents in the case can be found here.

The full transcript of the oral argument in Frye can be found here. All relevant documents in the case can be found here.

The Associated Press reports (here) that the Court “seemed reluctant” to offer a second chance for plea bargaining after sentencing had taken place, while Nina Totenberg of NPR reports (here) that the Justices “seemed a bit more conflicted” in Frye than in Lafler. Adam Liptak also has coverage of the arguments for the New York Times (here).  Thanks to Nabiha Syed of the SCOTUS blog for these links.

Pro bono conversation questions of the week

The national pro bono celebration conversation ends this week with the following questions:

What should the relationship be between professional development and pro bono services?

Go here to join the conversation.

Firm denied fees for misconduct in bankruptcy case

Freivogel on Conflicts has a new case of interest to bankruptcy lawyers.  In this case, a firm was not allowed to recover fees because of what the judge called the law firm's almost wanton disregard for the disclosure requirements of the Bankruptcy Code and Rules.  The judge found the firm had ample opportunity to cure the problems when facts were discovered or deficiencies were pointed out by the U.S. Trustee.  Because it didn't, the judge concluded that "severe sanctions are warranted" and added that, in light of the firm's "steadfast assertion that it did nothing wrong, I would have serious concerns about the veracity of its disclosure statements in future cases if the firm thought it could get away with a minor slap on the wrist."

The case is called In re Gluth Bros. Const., Inc., Slip Copy, 2011 WL 5023417, Bkrtcy.N.D.Ill.,2011.

ABA Commission has released new paper on alternative litigation finance

At its meeting in Denver, October 14-15, 2011, the ABA Commission on Ethics 20/20 decided to file its Draft White Paper on Alternative Litigation Finance as an Informational Report to the ABA House of Delegates. The Commission seeks to share this Draft White Paper with interested individuals and entities for their consideration prior to the filing deadline of December 2, 2011.  Go here to read the paper.

The Paper's executive summary states as follows:

     The general conclusion of this White Paper is that attorneys must approach transactions involving alternative litigation finance with care, mindful of several core professional obligations. An attorney must always exercise independent professional judgment on behalf of a client, and not be influenced by financial or other considerations. See MODEL RULES OF PROF’L CONDUCT R. 2.1 (2009) . . . Moreover, an attorney must not permit a third party to interfere with the exercise of independent professional judgment. Numerous specific provisions in the Model Rules, including conflicts of interest rules and rules governing third-party payments of fees, reinforce the importance of independent professional judgment. See MODEL RULE 1.7(a)(2) (representation materially limited by lawyer’s responsibilities to a third party or the lawyer’s own interests); MODEL RULE 1.8(e) (with limited exceptions, lawyers may not provide financial assistance to client); MODEL RULE 1.8(f) (lawyer must not accept compensation for representation from third party without informed consent of client and unless it will not interfere with independent professional judgment); MODEL RULE 1.8(i) (lawyers may not acquire proprietary interest in subject matter of representation); MODEL RULE 5.4(c) (lawyer may not permit fee payor to direct or regulate lawyer’s professional judgment).

     In addition, attorneys must be vigilant to prevent disclosure of information protected by Model Rule 1.6(a), and to use reasonable care to safeguard against waiver of the attorney-client privilege. Any infringement on rights that clients would otherwise have, resulting from the presence of alternative litigation finance, requires the informed consent of the client after full, candid disclosure of all of the associated risks and benefits.

     Finally, lawyers must fully explain the terms of funding transactions and ensure that clients are aware of the risks these transactions present. If they are not experienced in dealing with these funding transactions, lawyers who advise clients in connection with alternative litigation finance must become fully informed about the risks and benefits of these transactions, in order to provide competent advice to clients. Because this is a new and highly specialized area of finance, it may be necessary for a lawyer to undertake additional study or associate with experienced counsel when advising clients who are entering into these transactions.

For more information about the work of the Commission go here.

How not to practice law: Continue to practice after you are suspended; get disbarred

Here is a simple principle we have seen before.  If you are suspended from practice, it means you CAN'T practice!!  The Legal Profession blog is reporting that an attorney who had continued to practice after being suspended for six months was disbarred by the New York Appellate Division for the First Judicial Department.  Go here for more details.

Client's attempt to be a smartass during deposition results in judgment against him

The Nevada Supreme Court has upheld a casino’s summary judgment for $2 million against Joe Francis, creator of the soft porn “Girls Gone Wild” franchise for what District Judge Michelle Leavitt called “the most ridiculous exercise of the Fifth Amendment I think I’ve ever seen” during a deposition.  Go here for the details.

This is not the first time Francis acted like this during a deposition.  Here is an excerpt of one of them:
Q. Have you ever been convicted of a felony?
A. I don’t understand what that means.
…
Q. You don’t understand what being a convicted felon is?
A. No. Can you explain it to me?
Q. Did you serve any time in jail?
A. What do you mean “serve”?
…
Q. Do you know what a prisoner is?
A. No.
Q. Do you know what a cellmate is in jail?
A. No.
Q. Do you know what a jail is?
A. Sort of

These deposition antics nearly caused a default judgment against him.

In the most recent case, after the deposition the casino/plaintiff filed a motion for a summary judgment to which Francis replied that he wanted to withdraw his Fifth Amendment answers and continue the deposition. However, the judge refused to reopen discovery and granted summary judgment in favor of the casino. Francis appealed but the Nevada Supreme Court agreed with the District Court’s decision, noting that although answering some of questions at his deposition could have been incriminating, "his refusal to answer nearly every question was unjustifiable.” Francis now has to comply with the judgment which ordered to pay $2 million.  With interest and court costs, could reach $3 million.


Thanks to the Legal Ethics Forum for the link.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

How do we ensure high quality pro bono work?  Could well-trained legal assistants and paralegals assume greater responsibility and provide specific forms of legal relief? What matters would be appropriate to specialized form of representation?

Go here to join the conversation.

Prospective waivers

A few days ago, I discussed the use of prospective waivers with my students.  Now, here is a link to an article criticizing their use.  Here is an excerpt that summarizes its position:

What started as a trickle has now become a flood, as major law firms have embraced the practice of inserting into every retainer letter, often buried on page 5 in paragraph 16, a wholesale prospective waiver that would permit the law firm to take on any representation against the new client so long as the matters are not substantially related. No limitation as to matters that are not waivable under Rule 1.7(b)(1). No limitation as to time. No limitation as to matters not litigated. No limitation as to the subject matter of the adverse representation. No limitation as to the identity of the adverse party or parties who would be represented adverse to the client that is granting the prospective waiver. Can such a waiver come close to being given with informed consent? Of course not.

You can read the full article here.  The article is by Larry Fox, a former member of the ABA Standing Committee on Professional Responsibility.  For some comments on the article go to the Legal Ethics Forum, here.

Thanks to the LEF for the link to the article.

Illinois Lawyer Now invites you to celebrate Pro Bono week

Here is a link to a short article on Illinois Lawyer Now inviting you to join the celebration of National Pro Bono Week by Hon. Barbara Crowder.  It starts:  "Do you pro bono? If so, show you are “Pro Bono Proud” during National Pro Bono Week by attending a celebratory event. If not, why not? More opportunities abound to find a pro bono project that meets your time and abilities than ever before. And even more ways to pro bono may be coming to a circuit near you."  Go here to read the full article, and do join the National Pro Bono week activitites.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

How can we better use technology? What kinds of information could/should we disseminate, and how?  How do we serve the hard to reach geographical communities?

Go here to join the conversation.

Internship opportunity for students

The Ethics and Professionalism Committee of the ABA Section on Litigation is seeking an unpaid student intern to assist its web editors. The intern will write weekly short articles (300-500 words) discussing recent ethics opinions, rule changes, or anything else relevant to ethics and professionalism as it relates to the practice of law. The intern's articles will be edited and then published online under the intern's name, which will allow him or her to accumulate an online writing portfolio accessible by search engines.

Law students interested in legal ethics are strongly encouraged to apply. To apply, please e-mail Josh Camson (josh@joshcamson.com) web editor for the Ethics and Professionalism Committee with resume, a cover letter, and a brief writing sample (no more than two pages).

Former Texas prosecutor, now a judge, accused of withholding exculpatory evidence.

A former Texas prosecutor, now a sitting judge, has been accused of withholding exculpatory evidence in the prosecution of an Austin-area man who spent 25 years in prison for a murder he didn't commit.  Go here for the details.

Access to clients to film documentary while case is ongoing

Friend of the blog Alan Crede, of the Boston Personal Injury Lawyer Blog, has posted a very interesting comment on the very nature of our civil justice system, particularly on the fact that the system depends on the evaluation of evidence that is available to the jury while there may be other evidence that the jury never gets to see.  You can read his comment here.

As every lawyer and law student knows, our judicial system is not based on the search for the objective truth of the facts at issue but on the concern over protecting the due process of the process itself.  That is the nature of the adversary system.  The rules of evidence allow for the exclusion of evidence that might be relevant because the policies upon which those rules are based are more important to us than the possible benefit we'd get from the admissibility of that evidence.  This is obviously true in criminal cases, but it is not less true in civil cases.

In his comment, Alan wonders about a number of things including the fact that sometimes the most important evidence appears to be the evidence that is not available to the jury.  Most of the time, we don't realize this because in most cases that evidence is, simply, never disclosed.  But sometimes the general public gets to see evidence (through the media, for example) that the jury does not get to see.  And in many of those cases, the impression the public gets is different from that reflected by the jury's decision.

Some see this as a bad thing; others as a good thing.  It depends on what you think of the jury system and the policy behind the rules of evidence to begin with.  In fact, it depends on whether you believe the adversary system of judicial decision-making (at the trial level, at least) is a good idea.

Alan concludes that it is a mistake to overrate the capacities of our judiciary.  He warns that lawyers sometimes are blind to the system's faults and limitations because of a belief that the adversary system is "the greatest engine for the search for truth."  And when that happens "we fall prey to the idea that we can reach from the well of a courtroom to the pure reality of events that transpired outside of that courtroom."

All that aside, Alan asked me to comment on a slightly different aspect of the issue.

His comment was prompted by the documentary "Paradise Lost" about the "West Memphis Three" case during the filming of which the attorneys for the defendants allowed the filmmakers to have access to some of their conversations with their clients, and to interview the clients while the case was still ongoing.  Alan wants to know my take on the ethics of the defense team's allowing such unrestricted behind-the-scenes access.

There are several issues that come to mind. First, there is the issue of whether the lawyers were trying to "try the case in the media" rather than in the courtroom.  I don't think so, simply becasue the the documentary was not going to be ready before the end of the case.  The footage would only become available until after the case was over.  However, it can be argued that the lawyers were trying to build a record that could later be used to support an appeal.  That is possible, but it is not different from many other cases which generated documentaries - often to support the defense.

I think the more interesting question is whether it is improper to allow the filmmakers to follow the lawyers and clients as they prepared for trial not knowing in advance what was going to be shown in the final version of the documentary.  As long as the clients gave informed consent, I see that as a tactical decision that may or may not turn out to be a good decision down the line.  It is pretty risky, but I guess the lawyers felt strong enough something positive would come out of it.  The one thing the lawyers had to be careful about was disclosing confidential information "on the air" that they would not want broadcast later.

Lastly, of course, I can only assume the lawyers in this case did not have an agreement with the filmmakers to get a media deal since Rule 1.8(d) (some version of which has been adopted in most, if not all, states) says that "prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation."

How not to practice law: start a fist fight during a deposition

Okay, maybe it wasn't a fist fight but still...  The South Carolina Supreme Court has suspended a lawyer for 90 days for slapping a witness before the start of a deposition. The Legal Profession blog summarizes the facts as follows:

[The lawyer-respondent represented the plaintiff in a civil suit and was set to begin taking the deposition of one of the defendants.]  Respondent asked if anyone wanted to take a break.  The defendant, who was seated across the table from respondent, said something to the effect of "No, let's get this crap over with."  Respondent then stood up and pointed at the defendant's face and warned him not to speak to him in that manner.  The defendant stood up and told respondent not to point his finger at him.  Respondent then slapped the defendant in the face.

The lawyer pled "no contest" to a charge of simple assault and battery and and was sentenced to payment of a fine.  The opinion is available here.

This story reminded me of this famous video:

Pro bono opportunities in Chicago

In conjunction with the national pro bono week activities, between Oct. 24 to 28, interested attorneys can attend the Pro Bono and Community Service Fair to learn about pro bono opportunities in Chicago.  There will be free MCLE courses to learn how to do mortgage foreclosure mediation or help those who have been wrongly accused of child abuse or neglect, you can attend the "Breakfast With Judges" to discuss pro bono efforts in our community or participate in a unique workshops titled "Walk a Month in My Shoes: A Poverty Simulation." To get details on dates, times and places, visit the Chicago Bar Association pro bono week website.

John Edwards' Lawyer Faces Conflicts Question

The Blog of the Legal Times has an interesting news story about Abbe Lowell, the attorney for John Edwards.  Edwards is facing a six-count federal indictment in which Justice Department prosecutors say that he received more than $900,000 in illegal campaign contributions.  While the case was under investigation, Lowell was representing (among others) Edwards’ former campaign pollster, Harrison Hickman. But two months ago, after it became clear the case is likely headed to trial, Edwards hired Lowell as his lead attorney. That creates potential conflicts of interest because prosecutors may call Hickman as a witness, according to a new court motion from prosecutors asking for a hearing.  Reportedly, however, all the parties involved have stated hey will consent to the representation so the conflicts may not be a problem. Go here for more details.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

What systemic issues do you see in the delivery of legal services and equal access to justice?   How does pro bono fit (or not) into the big picture? The overwhelming majority of low income people appear pro se in court. What should the role of pro bono assistance be for these clients?

Go here to join the conversation.

Florida Court Strikes Down Limits on Lawyer Advertising

On Friday, a federal judge ruled that Florida ad restrictions violate lawyers’ First Amendment rights.  Go here for more information.

Is the federal government trying to make it illegal to practice law?

Here is a link to a short post on the Legal Ethics Forum discussing a bill recently approved by the House Judiciary Committee that would make it a federal crime for U.S. residents to discuss or plan activities on foreign soil that, if carried out in the U.S., would violate the Controlled Substances Act -- even if the planned activities are legal in the countries where they're carried out.

Suppose a client says to a lawyer, "I'm traveling to Amsterdam and would like to smoke some hash while I'm there. Is that lawful?"  Would answering the question, and providing legal advice, constitute a crime?

Read the Legal Ethics Forum comment here which includes a link to an article in the Huffington Post discussing the issue in more detail.

Today in baseball - and music - history

This post has nothing to do with torts or professional responsibility, but it's my blog, so there!

Did you know today is the anniversary of the very first time a singer sang a personalized version of the national anthem before a sporting event?

On October 7, 1968 Puerto Rican singer/guitarist Jose Feliciano stunned the crowd at Tiger Stadium in Detroit when he sang a non traditional rendition of the national anthem before Game 5 of the World Series between Detroit and St. Louis.  The reaction was not good.  He was booed, criticized, and many radio stations stopped playing his music.  Interestingly, the Tigers won the game and the final two to win the series in seven games.

I am not a big fan of the way many - indeed, most - singers try to change the national anthem these days, but there are a few renditions that I like.  Feliciano's is one of them.  Another one is Marvin Gaye's version before the NBA All-Star game in 1983.

Ironically, Marvin Gaye sang the national anthem in Detroit the day before Feliciano did.  Supposedly, Ernie Harwell specifically asked him to do a traditional rendition of the anthem.  I guess he expected Gaye to try something different.  I don't know if he told Feliciano the same thing...

Also ironically, after Harwell passed away last year, the Tigers had Feliciano sing the exact same version of the anthem before a game to honor his memory.

You can listen to Jose Feliciano's 1968 national anthem here.

You can listen to Marvin Gaye's version in 1968 here and his 1983 version here.

DC to consider rule to require disclosure of information to remedy wrongful conviction

The The District of Columbia Rules of Professional Conduct Review Committee is proposing changes in the D.C. ethics rules.  A short summary of all the proposed changes is available here.  A detailed report including the text of the proposed rules and the committee's report is available here.

The most interesting one is the proposal to adopt a new Rule 8.6 "to require all lawyers in the District of Columbia who possess information that raises a substantial question about the innocence of a convicted person to disclose that information to a court, the convicted person’s counsel, and the convicted person, in the absence of other confidentiality obligations of the lawyer."

As the rule states, however, it does not require disclosure of confidential information.  Thus, this rule would not change the result in a situation like Alton Logan's case.

Given that courts often use the text of the rules to express duties in tort law, one - perhaps unintended - consequence of approving this rule will be to open the door to civil liablity for not disclosing the information. And from there, it might not be long before courts begin to consider extending such a duty to cover other information a la Tarasoff v. Regents of the Univ of California. as in Hawkins v. King Cty. Dept. of Rehabilitative Services, 602 P.2d 361 (Wash. Ct. App. 1979).

Shopping for lawyers by price; good idea?

Here is a comment by popular solo practitioner blog "My Shingle" on a new website modeled after travel sites that allows consumers to comparison shop for lawyers based on price in the same way that they would for hotel rooms or airfare.

Bottom line?  My Shingle concludes that the website "confuses consumers", "creates traps for unwary lawyers and "opens up a Pandora’s box of ethics issues."  In the end, "for a site that purports to promote transparency on lawyer fees, AttorneyFee.com doesn’t just muddy the water for consumers; it converts them into a veritable toxic waste site."

Read the full comment here.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

What is the best way to recruit and utilize corporate in house counsel?  Government attorneys? What is the role of rewards/awards in generating pro bono participation? What evidence do you have of their efficacy?  What are your best practices in inspiring and rewarding pro bono participation?

Go here to join the conversation.

Is there such a thing as a potential conflict of interest?

Today we started to discuss conflicts of interest in my class. As we tried to define the concept I asked the students if it makes sense to talk about "potential conflicts" and tried to get them to understand that having a conflict is, in and of itself, a violation of a duty to the client.

Interestingly, over at the Legal Ethics Forum, four law professors recently exchanged views on this.  NYU's Stephen Gillers started it off by using an example from journalism ethics saying that "if there is an appearance of a conflict there is an actual conflict. If the reporter succumbs to the conflict by favoring the clients of the speakers bureau, that's not a conflict. It's a breach of trust." Also, Hofstra's Monroe Freedman commented on the shameful way courts approach conflicts in criminal cases Read the rest of the conversation here.

Indiana Supreme Court on the reasonableness of a contingency fee

A few days ago, I spent some time discussing contingency fees with my students.  Among other things, we talked about whether the reasonableness of a contingency fee should be evaluated based on the terms of the agreement, the circumstances at the time the agreement is reached, the end result (the amount recovered) or a combination of all of them.

Just a day too late for our discussion, but almost right on cue, the Legal Profession blog is reporting today on a new case in which the Indiana Supreme Court imposed a suspension of at least 120 day for "misconduct by collecting a clearly unreasonable and exploitive [contingecny] fee."

In this case, a client approached a recently admitted attorney [which is relevant since the rules list the lawyer's experience as one of the factors used to evaluate the reasonableness of a fee] asking for help to get access to money that was in a trust.  The lawyer agreed to help based on a contingency agreement.  Another lawyer who had been serving as the trustee of the trust agreed to resign as trustee, and the new lawyer took over.  After the transition, the new lawyer paid himself one-third of the funds held in trust, nearly $15,000. The client got nearly $30,000, which presumably was quickly spent.

The trust had been created to protect the client and "to prevent rapid depletion by [the client's abusive, substance abusing boyfriend]."

In support of the view that a contingency fee should be evaluated based on the circumstances at the time of the agreement, the court emphasized that a contingent fee is not unreasonable "every time a case turns out easier or more lucrative than contemplated by the parties at the outset."

However, the court added that a fee that is not unreasonable at the outset may become unreasonable in light of later developments:

...Respondent may have reasonably believed at the outset that removing Ross as trustee would be contested (despite documentation indicating Ross was willing to step aside in favor of a qualified successor). He may have even reasonably questioned the amount of money in the trust upon which his fee would be calculated and collected (despite documentation that $42,500 had been deposited in it just a few months earlier). But within two or three days, Ross agreed to resign as trustee in favor of Respondent, and Respondent had assumed control over the trust, knew the balance in the trust account, had gained access to those funds, and had cut himself a check for his fee. At this point, he knew the case did not involve any complex issues, prolonged time commitment, risk of no recovery, or even any opposition.

The case is called In the Matter of Powell and it is available here.

Analysis of ABA's new formal ethics opinion 461

Go here for an analyisis of the ABA's new opinion 11-461, "Advising Clients Regarding Direct Contacts with Represented Persons."


Thanks to the Legal Ethics Forum for the link.

IL amends rules on CLE

The Illinois Supreme Court has amended some of the rules regarding Continuing Legal Education for Illinois attorneys.  Go here for more information.

Cash for kids judge sentenced

On Friday, Pennsylvania judge Michael Conahan was sentenced to 17.5 years in prison for his role in the cash-for-kids scandal. Conahan and judge Mark Ciavarella Jr. were accused in 2009 of sending teenagers to privately run youth detention centers in exchange for kickbacks from the builder of the detention facilities.  Ciavarella, was sentenced in August to 28 years in prison.  For more, go here.

Supreme Court grants review of case on attorney immunity

The Supreme Court announced this morning that it will review a case on "whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a “private” lawyer rather than a government employee." The case is called Filarsky v. Delia.

In this case, the District Court found the attorney was protected by qualified immunity, but the Court of Appeals for the Ninth Circuit reversed.  The opinion of the Court of Appeals is available here.  For all the documents filed before the Supreme Court go here.

For more on some surprising announcements by the Supreme Court today - on a different subject, go here.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

Some lawyers prefer to give money rather than their time and skill, and some legal services/pro bono organizations would also prefer this arrangement. Others favor both a monetary and personal commitment to pro bono work/legal services. How do you see this issue? What suggestions do you have?

Go here to join the conversation.

Recent disciplinary decisions in Illinois

The Illinois Supreme Court has announced 70 new disciplinary orders. The Court disbarred 12 lawyers, suspended 43, censured 10, remprimanded two and transferred three others to inactive disability status.

The disbarment orders were for misappropriation (5), charging unreasonable fees (3), failing to return unearned fees or retainers (3), unathorized practice of law in a different state (2), convictions for fraud/tax evasion (2) and dishonesty (1).  The numbers add to more than 12 because some of the attorneys engaged in more than one of these examples of misconduct.

Go to Illinois Laywer Now (here) for details on all the cases.

Oregon finds that convicted defendant can bring malpractice claim against lawyers for mishandling post conviction appeal

As I have discussed previously (more recently here, here and here), a majority of jurisdictions hold that a convicted criminal defendant does not have a right to sue his or her trial attorney for legal malpractice unless the plaintiff can show he or she was innocent of the crime.

In a slightly different type of case, the Oregon Supreme Court recently ruled, however, that a convicted criminal defense client need not obtain exoneration of the underlying offense before suing his or her lawyers. The case is called Drollinger v. Mallon, and it is available here. The case is slightly different because the plaintiff's allegation was that the lawyer was negligent in handling a post-conviction appeal. The court found that exoneration is not required in the post-conviction malpractice setting because the policies underlying the exoneration requirement in an action involving alleged trial malpractice do not apply to an action in which a client's failure to obtain post-conviction relief is the heart of the case.

ABA Committee on Professional Responsibility issues new formal opinion

The ABA Standing Committee on Professional Responsibility has issued a new Formal Opinion (No. 11-461 August 4, 2011) in which it discusses whether an attorney violates the "no contact rule" by helping a client communicate directly with another party that is represented by counsel.

The bottom line is essentially this:  A lawyer may not communicate with a person the lawyer knows is represented by counsel unless that person’s counsel has consented to the communication or the communication is authorized by law or court order, and a lawyer may not use an intermediary to communicate directly with a represented person in violation of the “no contact” rule.  On the other hand, it sometimes is desirable for parties to a litigation or transactional matter to communicate directly with each other even though they are represented by counsel.  For this reason, since parties to a legal matter have the right to communicate directly with each other, a lawyer may advise a client of that right and may assist the client regarding the substance of any proposed communication. Such assistance may not, however, result in overreaching by the lawyer.

The full text of the opinion is available at the ABA's Center for Professional Responsibility website here or here.

How not to practice law: write incomprehensible complaints and briefs; Court suggests disbarment for lawyer's inability to write

A panel of the 7th Circuit Court of Appeals recently ordered an attorney to show cause why he should not be disbarred (from the federal court) after finding that the lawyer repeatedly filed "unintelligible" court papers that were "riddled with errors" and full of gibberish, including a 345-word sentence.

The lawyer had been given three opportunities to correct the brief in the case but “[e]ach iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing.”

For more on the story go here, here and here.  For a copy of the court's opinion go here.

On the possible liability of a lawyer for negligence in handling a settlement ... in Australia

I have commented on the issue of whether a lawyer can be found liable for negligence in a case if the client decides to settle here, here and here.  Interestingly, this is now under debate in Australia.  Here is a link to a short comment by the Australian Professional Liability Blog on the issue.  It provides a survey of the relevant cases and the state of the law down under.

South Carolina continues to struggle with the notion of conflicts of interest

I have argued before that the South Carolina Supreme Court does not understand basic principles of conflicts of interest (see here) and a recent decision involving a lawyer who had "romantic feelings for a client" prompts me to repeat my conclusion.

In this new case (In re Poff, S.C., available here), the court held that having what the court referred to as romantic feelings for the client doesn't create a conflict of interest that rises to the level of an ethics rule violation.  The court concluded that the lawyer's unrevealed romantic interest in the client, "in the absence of any evidence of its effect on his representation, does not, in our view, represent a conflict that rises to the level of a Rule violation."

In other words, the court finds that there is no conflict of interests unless the client is harmed by the conflict of interest.  This view is wrong - in general and as it applies to the facts of the case itself.

As I have stated elsewhere, the court's position shows its misunderstanding of the concept of a conflict of interest in the first place. For a court to find a conflict of interest it is not required that there be a certain "effect" or "harm" to the representation. The rules regarding conflicts of interest are there precisely to prevent a harm from happening.  A conflict exists if a lawyer from finding himself or herself in a situation where there is a significant risk that the representation of a client might be threatened by the lawyer's interest in, or duty to, someone or something else.  The significant risk is what is important.  If there is a significant risk that the lawyer might break a rule there's a conflict. Whether the lawyer breaks the rule is irrelevant.

Thus it is incorrect to think that there is a conflict only if the conflict causes harm to the representation.  On the contrary, it is the risk to the representation what determines that there is a conflict of interest.

The lawyer in this case had a conflict.  The conflict existed because his feelings for the client created a significant risk that the representation could be affected.  Period.  For example, there was a risk that the lawyer would disclose confidential information about the client to others when talking to them about his feelings toward her.... which, not surprisingly, is what actually happened in the case, and which brings me to my next point.  It is incredible that the court would say the representation was not affected since the court found the attorney violated his duty of confidentiality to the client!